IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

In the Matter of the Detention of: No. 53745-1-II

A.P.,

STATE OF WASHINGTON, 

Respondent, UNPUBLISHED OPINION

v.

A.P.,

Appellant.

SUTTON, A.C.J. — AP appeals from an order extending his detention for involuntary 

mental health treatment under a less restrictive alternative (LRA). He argues that the evidence 

was insufficient to establish that he was gravely disabled. We disagree, and affirm.1

FACTS

AP has a long history of mental health issues and has been diagnosed with schizoaffective 

disorder, bipolar type. In 2016, the court ordered an LRA2and AP began residing at Gibraltar 

Senior Living. The LRA order was extended several times prior to June 2019. 

 

1We note that although the 180-day extension of the LRA order has expired, this case is not moot 

because prior commitments have potential collateral consequences. In re Det. of M.K., 168 Wn. 

App. 621, 629, 279 P.3d 897 (2012).

2 There is no information in the record regarding whether AP was placed in an LRA after a period 

of involuntary inpatient treatment.

Filed

Washington State

Court of Appeals

Division Two

March 16, 2021
No. 53745-1-II

2

On June 28, 2019, AP’s providers petitioned to extend the LRA order for an additional 180

days, alleging that AP continued to be gravely disabled as a result of a mental disorder. Audrey 

Osborne, a Pierce County designated crisis responder, was the sole witness at the hearing on the 

petition.

Osborne testified that AP had been diagnosed with schizoaffective disorder, bipolar type, 

and that she had interviewed the then 59-year-old AP four times over the previous two years while 

he was living at Gibraltar, a structured senior living facility. Osborne did not have any information 

about AP’s “prior inpatient detentions.” Clerk’s Papers (CP) at 78-79.

Osborne testified that AP was receiving disability 3income through the Veteran’s 

Administration (VA) due to a psychiatric condition and that he was currently receiving treatment 

through the VA. She stated that AP had been “doing well” and had “stabilized” under the current 

LRA order and that he had been generally compliant with the medication and treatment orders

over the past year and a half. CP at 72.

Osborne testified, however, that although AP was aware that he was receiving VA 

disability based on a mental health condition, AP continued to assert that he did not have a mental 

illness and that he did not need to take any psychiatric medication. Osborne further testified that 

AP did not want to continue taking his medication. She also stated that due to AP’s lack of insight 

into his mental illness and need for psychiatric medications, if AP were not subject to an LRA 

order, he would stop taking his medication and “his ability to function would be compromised” 

significantly within days. CP at 78.

 

3 Osborne testified that AP was receiving a “100 [percent] service-connected disabled vet[eran]” 

pension as well as Social Security. CP at 72.
No. 53745-1-II

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Osborne commented that because of his success while under on the LRA order, it would 

be in AP’s best interest to remain in a supported environment and that AP would quickly become 

gravely disabled “if he were not receiving treatment.” CP at 77. She noted that “in the past, it has 

been observed that when he stops his medication, then within days, his behavior changes and he 

is difficult to manage.” CP at 78. Osborne testified that it would be unlikely that AP would be 

able to remain at Gibraltar if he discontinued his medication. And she opined that the housing, 

stability, treatment plan, and medications the LRA order offered had significantly stabilized AP. 

After hearing Osborne’s testimony and argument, the commissioner issued the following 

oral ruling:

The difficulty that this court has -- I think that there is clear, cogent and convincing 

evidence to keep [AP] on the LRA. He’s doing well, but the testimony that I have 

is, although he isn’t hasn’t [sic] shown a pattern of decompensating, because he 

abides by court orders, and that’s what has kept him from going down that road. 

He’s made it clear, and I think to . . . Ms. Osborne, as well as to other parties, that 

he intends to not stay on his medication, and has different ideas, should this order 

not be in effect. I think it’s great that he has done as well as he has; I think that it’s 

great that he’s goal oriented. I think the risk of decompensation in this case is 

enough for me to issue this order. I also note that we have buy-in from his guardian 

of the [e]state, who also has expressed, it appears, support of the continued LRA. 

Now. That having been said, if there were a motion to somehow change the 

conditions of the LRA, or if his plan to move to Alabama ever came to fruition and 

there was a stable place there that he could abide by, obviously that would leave 

Washington, but it’s not unheard of for cases to get transferred to another state --

that would not bar him from pursuing what he wants to pursue in Alabama. There 

would need to be more concrete plans to that effect for that to happen.

CP at 87 (emphasis added).

The court then issued the following written findings of fact:
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[AP’s] current Mental Status Examination reveals:

Good memory for remote and current events. He appears stabilized. His thought 

process is clear and oriented. He takes good care of himself and believes that 

“moving to Alabama” would be in his best interest. He is not delusional but he also 

is not practical. ([F]or example he wants to leave the state, start law school, get a 

girlfriend, and stop all medication). He also states he is younger than he really is 

because he had transfusions from younger people so that transfers him to a younger 

age. Insight limited in that he does not think he has a mental illness and does not 

think he needs medication. However he understands he has a mental disability 

which is the source of his VA benefits. Good volitional control. Ms. Osborne notes 

that he would be [gravely disabled] if he failed to take medication and 

decompensated.

Further, based on the verified Petition and the testimony of Petitioner, the 

Respondent:

Audrey Osbourne [sic] testified. [She] reviewed all records and spoke with his 

case-manager. She has seen [AP] on [four] occasions over the last few years a[t] 

Gibraltar House. [AP] has a guardian of the estate that helps manage his funds. 

The guardian believes the LRA is a benefit that includes living at the Gibraltar 

House. [AP] has been compliant with medications and treatment, which has 

allowed him to make the progress he has made over time. Without the structure 

and housing per the current LRA, he would likely decompensate.

[Osborne] believes [AP] tends to obey the law so he likely will abide by the LRA 

[o]rder. If it is not entered he likely will cease medications and treatment.

Cross: [AP] was fully oriented. He is friendly and cooperative. He is able to go 

into the community and he does well. He always returns to the Gibraltar House. 

His thought process is reasonable organized, he is goal oriented. He has VA income 

at $3000 and additional from Social Security.

CP at 58-59. The commissioner also found that AP “has only had a few prior [involuntary 

treatment commitments],” noting that AP had primarily “worked . . . with the VA for treatment for 

long term mental health issues.” CP at 58.

The commissioner ultimately found that, “[a]s a result of a mental disorder, [AP] . . . 

manifests severe deterioration in routine functioning evidenced by repeated and escalating loss of 
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cognitive or volitional control over his or her actions and is not receiving such care as is essential 

for his or her health or safety.” CP at 59 (boldface omitted). The commissioner concluded that 

“[a]s a result of a mental disorder, [AP] shall be detained for involuntary inpatient treatment or 

shall be treated under [LRAs] with conditions as set in the separate [o]rder [d]etaining 

[r]espondent.” CP at 58. The commissioner further concluded that AP is or continued to be 

gravely disabled and that a continued LRA order was in his best interest. The commissioner also 

adopted her oral findings of fact and conclusions of law. Based on these facts, the commissioner 

granted the petition and continued the LRA order for 180 days. 

The commissioner ordered that AP remain at Gibraltar until discharged under the LRA

order and that he participate in the recommended mental health treatment and take all prescribed 

medications. The commissioner also ordered that AP not leave the state “unless a residence and 

ongoing [treatment] in or at a VA facility is authorized in Alabama, and guardian is able to transfer 

funds to support [AP].” CP at 62.

AP moved to revise the commissioner’s decision, arguing that there was insufficient 

evidence to find that AP was presently gravely disabled. Noting AP’s current success while under 

the LRA order, the superior court discussed whether the court was required to release AP to allow 

him to decompensate before it could extend the LRA.

The superior court then stated,

And I -- I don’t think that I’m required to risk his life by saying[,] “It’s okay 

you don’t want to take your meds. You have unrealistic goals. You have no real 

planning other than you just want to get out of this group home or family home. 

And I’m going to risk that you’re going to be okay in the future.
No. 53745-1-II

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I find by clear, cogent, and convincing evidence that this gentleman is doing 

as well as he is doing because of the structured environment that he is currently in. 

And he is doing exactly what the statute intended for him to do, and that was to 

have an environment that supported him and his mental health.

And he’s doing extremely well, but the problem is he’s been vocal about 

the fact that he doesn’t want to take meds, he’s not going to take meds if he’s 

released. He has unrealistic planning. He has little or no insight into his condition. 

If he is still talking about -- And this has been his theme for the last year and a half, 

according to Ms. Osborne, is that he wants to go to Alabama and go to law school, 

which the [c]ourt has to find is simply not realistic.

And . . . I find by clear, cogent, and convincing evidence that he will not 

receive the care if he was released without less restrictive conditions. And if he 

wants to realistically plan for a release from somewhere other than where he wants 

to be currently, the [c]ourt would be all ears. But I feel by clear, cogent, and 

convincing evidence that if he was released without any support structure and left 

on his own to voluntarily make these decisions -- I think he’s gravely disabled in 

that respect and we would be exactly doing what the State is not wanting to do, and 

that’s create a revolving door for this gentleman.

And I understand, [AP’s counsel], your argument 1,000 percent, because I 

made it many times myself. But I just feel until he gets more insight into the fact 

that he needs medication and he needs [a] more realistically plan for his future that 

I still find that to be the definition of “gravely disabled” and respectfully deny your 

motion to revise. I think the commissioner made the right decision.

Verbatim Report of Proceedings (VRP) (Aug. 2, 2019) at 14-15 (emphasis added). The superior 

court issued an order denying the motion for revision and adopting the commissioner’s decision. 

AP appeals the extension of his LRA. 

ANALYSIS

AP argues that the gravely disabled finding is not supported by substantial evidence 

because the court found that he was “gravely disabled based on the future possibility that he could 

become gravely disabled if taken of[f] the LRA,” rather than “recent, tangible evidence of failure 
No. 53745-1-II

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or inability to provide for [his] essential human needs.” Br. of Appellant at 1 (emphasis added). 

We disagree.

I. LEGAL PRINCIPLES

“On appeal [following a denial of a motion to revise a commissioner’s ruling], this court 

reviews the superior court’s ruling, not the commissioner’s.” Maldonado v. Maldonado, 197 Wn. 

App. 779, 789, 391 P.3d 546 (2017) (citing In re Marriage of Stewart, 133 Wn. App. 545, 550, 

137 P.3d 25 (2006)). Because the superior court denied AP’s motion to revise the commissioner’s 

ruling, the commissioner’s decision becomes the superior court’s decision. Maldonado, 197 Wn. 

App. at 789 (citing In re Marriage of Williams, 156 Wn. App. 22, 27-28, 232 P.3d 573 (2010)).

In the context of an extension of an LRA order, the petitioners must prove that the 

respondent “[c]ontinues to be gravely disabled.” RCW 71.05.320(4)(d).4 The grave disability 

must be shown by clear, cogent, and convincing evidence, meaning that the ultimate fact in issue 

is shown to be “highly probable.” In re Det. of LaBelle, 107 Wn.2d 196, 209, 728 P.2d 138 (1986).

We “will not disturb the trial court’s findings of ‘grave disability’ if [the findings are] 

supported by substantial evidence which the [superior] court could reasonably have found to be 

clear, cogent[,] and convincing.” LaBelle, 107 Wn.2d at 209. “‘Substantial evidence is evidence 

that is in sufficient quantum to persuade a fair-minded person of the truth of the declared premise.’” 

In re Det. of T.C., 11 Wn. App. 2d 51, 56, 450 P.3d 1230 (2019) (internal quotation omitted)

(quoting In re Det. of A.S., 91 Wn. App. 146, 162, 955 P.2d 836 (1998)).

 

4 The legislature amended this statute in 2020, but subsection (4)(d) did not change. Laws of 

2020, ch. 302 § 45. Accordingly, we cite to the current version of the statute.
No. 53745-1-II

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II. GRAVELY DISABLED

An individual may be involuntarily committed for mental health treatment if, as a result of 

a mental disorder,5the individual is gravely disabled. LaBelle, 107 Wn.2d at 201-202. At the time 

the petition was filed in this case, former RCW 71.05.020(22) (2018)

6

provided two definitions of 

“gravely disabled.” The superior court relied on the definition in former RCW 71.05.020(22)(b), 

which required the petitioners to prove that AP “manifest[ed] severe deterioration in routine 

functioning evidenced by repeated and escalating loss of cognitive or volitional control over his or 

her actions and is not receiving such care as is essential for his or her health or safety.” The 

petitioners must establish that the individual is gravely disabled by clear, cogent, and convincing 

evidence. LaBelle, 107 Wn.2d at 209.

Subsection (22)(b) was intended to address respondents who experience 

“‘decompensation.”’ LaBelle, 107 Wn.2d at 206. This subsection

permits the State to treat involuntarily those discharged patients who, after a period 

of time in the community, drop out of therapy or stop taking their prescribed 

medication and exhibit “rapid deterioration in their ability to function 

independently,”

without requiring those individuals to decompensate to the point that they were in danger of serious 

harm from their inability to care for themselves. LaBelle, 107 Wn.2d at 206 (quoting Durham & 

LaFond, The Empirical Consequences and Policy Implications of Broadening the Statutory 

Criteria for Civil Commitment, 3 Yale L. & Pol’y Rev. 395 (1985)).

 

5

 AP does not dispute that any potential grave disability was the result of a mental disorder.

6 LAWS OF 2018, ch. 201 § 3001.
No. 53745-1-II

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The “evidence must include recent proof of significant loss of cognitive or volitional 

control. In addition, the evidence must reveal a factual basis for concluding that the individual is 

not receiving or would not receive, if released, such care as is essential for his or her health or 

safety.” LaBelle, 107 Wn.2d at 208 (emphasis added). The care must be essential to the 

respondent’s health or safety, not merely preferred, beneficial, or in his best interest. LaBelle, 107 

Wn.2d at 208.

Additionally,

[i]mplicit in the definition of gravely disabled . . . is a requirement that the 

individual is unable, because of severe deterioration of mental functioning, to make 

a rational decision with respect to his need for treatment. This requirement is 

necessary to ensure that a causal nexus exists between proof of “severe 

deterioration in routine functioning” and proof that the person so affected “is not 

receiving such care as is essential for his or her health or safety”.

LaBelle, 107 Wn. 2d at 208 (some emphasis added, internal quotation marks omitted). A key 

component in this analysis is whether the respondent is able to “form realistic plans for taking care

of himself outside the hospital setting.” LaBelle, 107 Wn.2d at 210.

AP argues that there had to be evidence that he was unable to provide for his essential 

needs or make rational decisions regarding his care and that it was mere speculation that he would 

stop taking his medication and decompensate if he were to be released from the LRA order.

7

 But 

Osborne testified that AP wanted to stop taking his medication and that if AP were not subject to 

 

7 AP also argues that, as in In re Detention of M.K., 168 Wn. App. 621, 279 P.3d 897 (2012), there 

was no evidence establishing that AP “would not be able to provide for his essential health care 

and safety.” Br. of Appellant at 13. But, AP relies on the unpublished portion of M.K. Because 

M.K. was filed in 2012, well before March 1, 2013, not only is the unpublished portion of M.K.

not binding authority, this court cannot consider the unpublished portion of the opinion as 

persuasive authority. GR 14.1(a). Accordingly, we do not consider this portion of M.K.
No. 53745-1-II

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an LRA order, he would likely stop taking his medication because he lacked insight into his mental 

health condition and did not believe he needed medication. 

Osborne also testified that because of AP’s lack of insight into his mental health condition 

and his need for medication, an LRA order was necessary to ensure he remained compliant. She 

stated that past experience demonstrated that if he stopped taking his medication he would quickly 

decompensate and that his continued housing at Gibraltar would be put at risk. 

This evidence provides clear, cogent, and convincing evidence that AP was incapable of 

making rational decisions related to his treatment and that he would decompensate quickly if 

released from the LRA order. Thus, there is substantial evidence supporting the gravely disabled 

finding.8 See LaBelle, 107 Wn. 2d at 208 (“Implicit in the definition of gravely disabled . . . is a 

requirement that the individual is unable, because of severe deterioration of mental functioning, to 

make a rational decision with respect to his need for treatment.”).

AP also contends that there was no testimony providing “any examples of 

decompensation,” when AP was not taking his medication and that it was mere speculation that he 

would experience decompensation that rendered him gravely disabled. Br. of Appellant at 13. But 

Osborne testified that in the past AP had stopped taking his medication and that within days his 

behavior had changed to the point he was “difficult to manage.” VRP at 78. Osborne also testified 

 

8 AP also asserts that Osborne “believed that A.P. is gravely disabled not based on present 

behavior, but rather based on A.P.’s plans to move to Alabama, which she and [the guardian] 

believed were not ‘realistic’ or ‘practical’, despite A.P.’s $3700 month income.” Br. of Appellant 

at 12. Although the nature of AP’s proposed release plan was vague and the superior court found 

it unrealistic, AP’s lack of insight into his mental health condition and need for medication, which 

would place him at risk of decompensation, was alone sufficient to support the grave disability 

finding.
No. 53745-1-II

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that in the past AP’s behaviors had “been a problem” and had threatened his ability to remain at 

Gibraltar VRP at 78. This evidence goes beyond mere speculation and supports a finding that it 

was highly probable that AP would decompensate without being subject to an LRA order.

AP further argues that the court erred by relying on the legislative notes to RCW 71.05.3209

to support its ruling because RCW 71.05.320 requires “evidence of a recent inpatient civil 

commitment . . . [and] the state failed to present any such evidence.”10 Br. of Appellant at 15. 

Although the legislative note to RCW 71.05.320 mentions a recent inpatient civil commitment, 

RCW 71.05.320 does not state that a prior inpatient civil commitment is required. And AP cites 

no authority requiring a prior inpatient commitment before the trial court can consider the risk of 

decompensation when addressing whether to renew an LRA order. Accordingly, this argument 

fails.

 

9 The legislative note provides:

(1) The legislature finds that many persons who are released from involuntary 

mental health treatment in an inpatient setting would benefit from an order for less 

restrictive treatment in order to provide the structure and support necessary to 

facilitate long-term stability and success in the community.

(2) The legislature intends to make it easier to renew orders for less restrictive 

treatment following a period of inpatient commitment in cases in which a person 

has been involuntarily committed more than once and is likely to benefit from a 

renewed order for less restrictive treatment.

(3) The legislature finds that public safety is enhanced when a designated mental 

health professional is able to file a petition to revoke an order for less restrictive 

treatment . . . before a person who is the subject of the petition becomes ill enough 

to present a likelihood of serious harm.

Laws of 2015, ch 250 § 21; Laws of 2009 c 323 § 1.

10 We note that a footnote in the response cites to various records that might establish a prior 

involuntary inpatient commitment. Br. of Resp’t at 1 fn. 2. But the documents cited are not part 

of the appellate record, nor were they designated as part of the appellate record.
No. 53745-1-II

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Because the gravely disabled finding is supported by substantial evidence, we affirm the 

order extending the LRA order.

A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, 

it is so ordered.

SUTTON, A.C.J.

I concur:

CRUSER, J.
No. 53745-1-II

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MAXA, J. (dissenting) – The record here shows that the superior court erred in entering 

AP’s commitment order because the State failed to show that AP was gravely disabled as defined 

in former RCW 71.05.020(22)(b) (2018). Accordingly, I dissent.

A person is “gravely disabled” under former RCW 71.05.020(22)(b) if the person 

“manifests severe deterioration in routine functioning evidenced by repeated and escalating loss 

of cognitive or volitional control over his or her actions and is not receiving such care as is 

essential for his or her health or safety.” There is no question that this definition has two 

separate requirements: (1) a severe deterioration in routine functioning evidenced by a loss of 

cognitive or volitional control and (2) a failure to receive treatment that is essential for health or 

safety. In re Det. of LaBelle, 107 Wn.2d 196, 205, 728 P.2d 138 (1986).

Unfortunately, both the State and the courts tend to ignore the first requirement of former 

RCW 71.05.020(22)(b) and focus only on the second requirement. The commissioner and the 

superior court did so here, as does the majority. The result is that the first requirement of former 

RCW 71.05.020(22)(b) has been written out of the statute in this case.

There is no question that the evidence here supports a finding that the State has satisfied 

the second requirement of former RCW 71.05.020(22)(b). The court in LaBelle stated that the 

State can meet its burden under the second requirement by presenting evidence that the person 

“would not receive, if released, such care as is essential for his or her health or safety.” 107 

Wn.2d at 208. Here, the record shows that AP would stop taking his necessary medication if 

released, which would endanger his health and safety.

But where is the evidence that AP “manifests severe deterioration in routine functioning 

evidenced by repeated and escalating loss of cognitive or volitional control over his or her 
No. 53745-1-II

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actions”? Former RCW 71.05.020(22)(b). In LaBelle, the court stated that “it is particularly 

important that the evidence provide a factual basis for concluding that an individual ‘manifests 

severe [mental] deterioration in routine functioning’. Such evidence must include recent proof of 

significant loss of cognitive or volitional control.” 107 Wn.2d at 208 (quoting former RCW 

71.05.020(1)(b) (1979)). There was no such evidence here.

The commissioner’s factual findings regarding AP’s mental state, which the superior 

court adopted, are telling: 

Good memory for remote and current events. He appears stabilized. His thought 

process is clear and oriented. He takes good care of himself. . . . Insight limited 

in that he does not think he has a mental illness and does not think he needs 

medication. However, he understands he has a mental disability which is the source 

of his VA benefits. Good volitional control. 

. . . .

He was fully oriented. He is friendly and cooperative. He is able to go into the 

community and he does well. He always returns to the Gibraltar House. His 

thought process is reasonable organized, he is goal oriented.

 

Clerk’s Papers (CP) at 58-59 (emphasis added). The commissioner’s finding that AP had clear 

and oriented thought process and good volitional control is inconsistent with the conclusion that 

he demonstrated a loss of cognitive or volitional control.

The commissioner further found: “[AP] . . . believes that ‘moving to Alabama’ would be 

in his best interest. He is not delusional but he also is not practical. (For example, he wants to 

leave the state, start law school, get a girlfriend, and stop all medication).” CP at 58 (emphasis 

added). The commissioner apparently did not agree with AP’s plan for the future. The superior 

court took the same position, stating, “You have unrealistic goals” and “[AP] wants to go to 

Alabama and go to law school, which the [c]ourt has to find is simply not realistic.” Report of 
No. 53745-1-II

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Proceedings (Aug. 2, 2019) at 14. But just because a person has a mental illness does not allow a 

court to override that person’s goals and dreams. And having unrealistic goals does not reflect 

the “loss of cognitive or volitional control.” Former RCW 71.05.020(22)(b). 

The commissioner and the superior court apparently believed that it was in AP’s best 

interest to remain involuntarily committed. I do not disagree with that conclusion. But that is 

not the standard for involuntary commitment. The court in LaBelle emphasized that people 

cannot be involuntarily committed “solely because they are suffering from mental illness and 

may benefit from treatment.” 107 Wn.2d at 207.

The commissioner and the superior court also apparently thought that AP would 

decompensate if released. That conclusion may be reasonable. But again, that is not the 

standard for involuntary commitment. Unless the legislature removes the first requirement under 

former RCW 71.05.020(22)(b), the possibility that a person might decompensate if released is 

not a sufficient basis to involuntarily commit that person.

There simply is insufficient evidence in the record to establish by clear, cogent, and 

convincing evidence that AP “manifests severe deterioration in routine functioning evidenced by 

repeated and escalating loss of cognitive or volitional control over his or her actions.” Former 

RCW 71.05.020(22)(b). Therefore, I would reverse AP’s involuntary commitment.

 MAXA, J.